Melwood v. Melwood, (1998) 240 A.R. 135 (ProvCt)

• Judge: Landerkin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 03, 1998
• Jurisdiction: Alberta
• Citations: (1998), 240 A.R. 135 (ProvCt)

Melwood v. Melwood (1998), 240 A.R. 135 (ProvCt)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. JA.078

Roberta Ann Melwood (applicant) v. Robert Victor Melwood (respondent)

(CFC 114012)

Indexed As: Melwood v. Melwood

Alberta Provincial Court

Family Division

Landerkin, P.C.J.

December 3, 1998.

Summary:

Spouses divorced in 1984. The divorce decree reserved the mother's right to apply for child support. No maintenance order was ever applied for. The Director of Family Maintenance, as a statutory subrogated party to the mother's rights, now applied for child support for the mother's 15 year old daugh­ter. The father submitted that the Family Division lacked jurisdiction to award sup­port, because the reservation of the right to apply for support was sufficient to give exclusive jurisdiction to the superior court (Court of Queen's Bench).

The Alberta Provincial Court, Family Division, held that absent a positive order for support under federal legislation the provincial court had jurisdiction to award support under provincial legislation, because there was no operational incompatibility between provincial and federal law.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - [See Family Law - Topic 2244 ].

Constitutional Law - Topic 3618

Paramountcy of federal statutes - Over­lapping legislation - Divorce - Maintenance - [See Family Law - Topic 2244 ].

Constitutional Law - Topic 6416

Federal jurisdiction (s. 91) - Marriage and divorce - Effect of federal divorce statutes on provincial jurisdiction - [See Family Law - Topic 2244 ].

Family Law - Topic 2244

Maintenance of wives and children - Juris­diction - Jurisdiction of provincial court following divorce proceedings in superior court - Spouses divorced in 1984 - The divorce decree reserved the mother's right to apply for child support - No main­tenance order was ever applied for - The Director of Family Maintenance, as a statutory subrogated party to the mother's rights, applied for child support for the mother's 15 year old daughter - The father submitted that the provincial court (Family Division) lacked jurisdiction to award support, because the reservation of the right to apply for support was sufficient to give exclusive jurisdiction to the superior court (Court of Queen's Bench) - The Alberta Provincial Court, Family Division, held that absent a positive order for sup­port under federal legislation the provincial court had jurisdiction to award support under provincial legislation, there being no operational incompatibility between pro­vincial and federal law.

Cases Noticed:

Ferraz v. Ferraz (1981), 24 R.F.L.(2d) 386 (Alta. Prov. Ct.), refd to. [para. 4].

McCutcheon v. McCutcheon (1977), 2 A.R. 387 (C.A.), refd to. [para. 5].

Goldstein v. Goldstein, [1976] 4 W.W.R. 646 (Alta. C.A.), refd to. [para. 5].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 6].

Keller v. Keller (1987), 83 A.R. 313; 10 R.F.L.(3d) 268 (Q.B.), refd to. [para. 9].

White v. White, [1994] 7 W.W.R. 249; 118 Sask.R. 293 (Q.B.), refd to. [para. 10].

Authors and Works Noticed:

Davies, Family Law in Canada (1984), p. 266 [para. 3].

Counsel:

J. Nicholson, for the applicant;

J. Markey, for the respondent.

This application was heard before Landerkin, P.C.J., of the Alberta Provincial Court, Family Division, who delivered the following judgment on December 3, 1998.